Posted
by
ScuttleMonkeyon Monday August 04, 2008 @05:53PM
from the one-step-forward-two-steps-back dept.

NewYorkCountryLawyer writes "Apparently the RIAA's 'big gun' didn't fare so well this morning in Duluth, when he tried to persuade the judge in Capitol v. Thomas that the part of the Copyright Act which says 'by sale or other transfer of ownership, or by rental, lease, or lending', can be disregarded. According to an in-person account by Wired.com the Judge indicated that he is likely to grant a mistrial, setting aside the $222,000 jury verdict based upon his incorrect jury instruction, and that he will probably hand down his decision in September. Just yesterday some of the same lawyers got rebuffed by the US Court of Appeals for the Second Circuit in their attempt to argue that Cablevision's online storage for its customers constitutes a copyright infringement, in Cartoon Network v. CSC Holdings. There, too, the content owners had argued that the wording of the Copyright Act did not mean what it said. There, too, the Court politely but firmly disagreed."

I don't think that's going to stand up. Undercover cops buy drugs and the state doesn't have to prosecute them for buying them.

You missed the point. The problem for the RIAA is that when they downloaded the files, they were authorized to download the files (as representatives of the copyright holders) and thus, because this was an authorized download it does not provide evidence of a copyright violation. It's really a catch-22 situation for the copyright holders.

The part that bugs me is where Toder (defense lawyer) says that the plaintiff can't introduce evidence of the investigators downloading files from the defendant. According to TFA:

Those downloads, Toder said, cannot be considered unauthorized downloads because the RIAA authorized them.

I don't think that's going to stand up. Undercover cops buy drugs and the state doesn't have to prosecute them for buying them. Why couldn't investigators "illegally" download copyrighted material and still have it considered infringing on the part of the defendant, but not be prosecuted?...

The reason undercover cops arent charged is because they are officers of the law, and are thus believed to be pursuing the upholding of the law. See entrapement [wisegeek.com] as it relates to undercover cops "selling" illegal drugs. Since the RIAA "Investigators", many of whom are not even licensed, they are not officers of the law, and thus should not face the same privilege. For similar reasons, setting up your own drug sting operation to help cleanup your neighborhood by trying to sell oregano will probably get you thrown in jail instead of any "customers" you might catch. The defense is arguing that if the investigators are not liable for downloading the content illegally, then the content must be authorized by the RIAA. In this case, its like they sent their own "Johns" out on the street to find prostitutes, and then rather than turning over their own Johns after the deed is done, only turn over the prostitutes, all while not being official law enforcement agents. They are overstepping their rights and should not be afforded the privilege they have assumed.

I don't think that's going to stand up. Undercover cops buy drugs and the state doesn't have to prosecute them for buying them. Why couldn't investigators "illegally" download copyrighted material and still have it considered infringing on the part of the defendant, but not be prosecuted?

Sharing music is not inherently illegal. Copyright violation only exists when a copy is made without authorization of the copyright owner or some special circumstances (fair use, media shifting, etc.). If a copyright owner or their agent transfers a song, no violation has occurred. Contrast with a drug deal which is always against the law.

Often Police Officers are reasonably doing what members of the public commonly do, out of a belief that someone is a criminal. If the belief is reasonably formed, I applaud them for it--the police shouldn't be prevented from, in the course of an investigation, pretending to be a regular Joe or Sally in order to see if someone is selling drugs, for example.

But you run into real problems, too--I've heard stories from people who work in environments where, because the police expect there to be corruption, the police send in undercover people all the time and repeatedly try to get non-criminals to engage in criminal activity. It's one thing to notice someone is dealing drugs or traveling with drugs--it's quite another to ask them to help you transport those drugs by weaseling them into it. "Oh, you're flying down to such-and-such a city for your sister's birthday? Could you drop this package of mine off with an old friend?" That kind of thing.

Some cops behave better than others, and of course they have a job to do. It's hard to find the line, sometimes, but it's important to remember that there is one.

With the RIAA, obviously it's different: this is a private group copying something they've sold to you, saying you're the one who's copied it, and then suing you for it.

As an Artist, of course I think we need copyrights, because I spend months or years of my life writing a book. But going after a pirate (or a ninja) who probably wouldn't have paid for the book in the first place isn't helpful to me: it generates bad will, it's a bigger drain on society than the copy is, and I'd rather have the book read by someone who didn't pay for it than have it be not read by someone who wouldn't have read it otherwise.

I'm not saying I'd never enforce copyright, nor that people should be violating it. But suing everyone who does is not the right answer.

As was John Jay, the first Chief Justice of the U.S. The really sad thing is that all jurors should already be aware of their absolute rights as arbiters of facts *and* the law, but peoples' knowledge of how their own government works is a joke nowadays.

The copy operation gets initiated from another computer, is the person who initiated the operation (the downloader) responsible? Or is it the person who made it available?

According to the law, it's the downloader who is responsible. In a post on yesterday's article someone offered a good example, sorry I don't recall the person. The example used a newspaper. If I buy a newspaper, read it in a park then leave it on a park bench I'm not breaking the law. Well, depending one where I might be breaking a littering law. But if someone else picks the paper up then copies it and hands out the copies, they are breaking the law if they do not have the copyright holder's permission.

I don't think that's going to stand up. Undercover cops buy drugs and the state doesn't have to prosecute them for buying them. Why couldn't investigators "illegally" download copyrighted material and still have it considered infringing on the part of the defendant, but not be prosecuted?

Because the criminal requirements are that if someone believes they are committing a crime, then they are. If there is a buy for drugs and it's flour, it's still a crime. If someone shoots into a trunk they previously locked someone in with the intent of killing them, it could be tried as attempted murder even if the person was moved from the trunk and was in no actual harm. However, civil cases are different. Most require that you get actual damage. If someone tries to break a contract and believes they did break a contract, they still aren't guilty of breaking it unless there is some harm to the other side. You can't sue someone if they didn't harm you.

If he "makes available" something, but no copies were made, then there was no loss. If he makes something available and the only person that makes the "illegal" copy is the copyright owner or their agent, then there was no loss. Without a loss, there can be no civil case.

Not defending the RIAA, but just pointing out something that seems illogical to me.

You have pointed out another reason why they are pressing hard for making all infringements, including incidental non-commercial infringement into crimes, rather than simply "illegal" (but requiring civil actions). There is a different set of rules for civil suits (not to mention the cost of prosecution) and they favor the RIAA if these are all criminalized.

This is not a catch-22 for copyright holders. I am a photographer, and I have prosecuted copyright infringement several time. I find EVIDENCE that someone copied the images illegally, by finding copies published in placed that did not license them. The RIAA already does this -- when they find actual unauthorized copies (like CDs at flea markets).

since she was found to have used the same username for her file sharing app as she did for email and other websites, I think anyone who thinks she wasn't guilty of filesharing is being silly

I guess you're not familiar with the facts. There was ZERO evidence that she had used the "file sharing app". There was evidence that(a) her computer had been malfunctioning, and (b) someone had used a "file sharing app", and (c) that someone had used defendant's frequent user name. The techie from Best Buy testified that the computer was irretrievably corrupted and infected. I.e., all of the facts were completely consistent with a 'zombie' situation.

You're certainly entitled to your opinion, SirShmoopie, I just want to make sure you recited the correct facts.

There was no evidence that she had done it, and there was her sworn testimony that she had not. If you equate her sworn testimony to no evidence at all, that is your prerogative, but in my view your doing so betrays a certain bias.

Copyright law has both civil and criminal penalties. The Criminal Offenses [copyright.gov] portion of copyright law goes into more details.

You're correct that many cases of copyright infringement don't fall into criminal territory. But it's also important to understand that you are being misleading when you state that copyright is not a criminal matter. Sometimes, it is.